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An Electronic Travel Authorization (eTA) is a new requirement for foreign nationals from visa-exempt countries arriving in Canada by air, whether to visit the country directly or to pass through in transit.

The Governor General’s power to grant royal assent is not subject to judicial review.

It is within parliament’s legislative capacity to create a law that revokes citizenship.

The applicant sought to set aside Governor General David Johnston’s decision to grant royal assent to Bill C-24, the Strengthening Canadian Citizenship Act. The bill would allow the Minister of Citizenship and Immigration to revoke the citizenship of natural-born and naturalized Canadian citizens who have been convicted of crimes relating to national security or terrorism.

The two issues were:

Is the Governor General’s power to grant royal assent subject to judicial review?

Is it within parliament’s legislative capacity to create a law that revokes citizenship?

In response to the first issue, the court opined that the separation of powers within Canada’s constitutional order prevents the judiciary from intervening in the legislative process. The Governor General’s power to grant royal assent to legislation is established in section 55 of the Constitution Act, 1867. Section 55 is included in Part IV of the Act, which is entitled: Legislative Power. This confirms the conclusion that the Governor General’s power to grant assent is legislative in nature and thus not subject to judicial review.

In response to the second issue, the court opined that the right to citizenship is not inalienable as Canada has a long history of creating legislation that provides for the alienation of citizenship. Furthermore, the court confirmed that parliament’s capacity to legislate on all matters relating to citizenship stems from both the preamble of section 91 of the Constitution Act, 1867, which permits parliament to make laws for the peace, order and good government of Canada, and section 91(25) of the Constitution Act, 1867, which gives parliament authority over matters related to naturalization and aliens. Thus, it is within parliament’s legislative capacity to create a law that revokes citizenship.

New measures are coming into effect from 21 February that will impose additional fees and restrictions on Canadian employers looking to employ certain types of foreign workers. The Canadian federal government announced the move after reviewing several scandals the sector has seen in recent months.

The new rules will apply to intra-company transfers, employees entering Canada under NAFTA, employers hiring through the International Mobility Program, and employees hired through reciprocal agreements with other countries, like working holiday schemes.

Under the new rules, Citizenship and Immigration Canada requires employers to pay an « employer compliance » fee of $230, and provide details about their company or organization as well as the original offer of employment, in order to be allowed to hire a foreign worker without a Labor Market Impact Assessment (LMIA). An extra $100 fee will apply to employees in possession of work permits.

In a statement, CIC has said, « The fees collected will offset the cost of introducing robust employer compliance activities featuring inspections of thousands of employers. »

Experts warn that the new rules may go against NAFTA conventions, and could also significantly hamper business operations throughout Canada, while critics argue that the system has not been explained properly and lacks transparency.

However the federal government has defended the changes by highlighting some of the abuses of the previous programs carried out by employers over the past few months. In one case, employers brought skilled Irish workers using work-holiday visas in order to get around the LMIA precondition. In another case, the Royal Bank was found to have used the intra-company transfer system to apply for visas for Indian workers to replace their Canadian employees in 2013.

According to the CIC, employers could now face substantial penalties if they are found to bring in foreign workers using false declarations.

The new rules are an attempt to apply the same level of scrutiny to foreign workers exempt from the labor market assessment as temporary foreign workers are subjected to. Statistics show that foreign workers entering Canada without a labor market assessment under the International Mobility Program have outnumbered temporary foreign workers, with almost 140,000 workers coming to Canada through the International Mobility Program as opposed to less than 85,000 temporary foreign workers.

Elaborating on the changes, a spokesman for Immigration Minister Chris Alexander said, « Our government is committed to reforming its work permit programs to encourage the hiring and training of Canadians, limit the use of foreign workers in Canada to those situations where it is a benefit to Canada, and ensure that abuses of the program or of foreign workers by employers will be detected and dealt with. »

Despite criticism that the changes have been announced without sufficient stakeholder consultation, union organizers who helped expose abuses of the International Mobility Program have welcomed the changes as an attempt by the government to rectify the problems with the current system.

Canada’s Supreme Court has rejected an appeal to remove the country’s citizenship oath, which requires applicants to swear allegiance to Queen Elizabeth II. The appeal was launched by three permanent residents who wanted to obtain citizenship but not pledge allegiance to the UK monarch.

Native-born Canadians do not have to take any oath and the plaintiffs say the vow violates religious and conscientious beliefs.

Australia, also a constitutional monarchy, scrapped its pledge to the monarchy 20 years ago. Government lawyer Kristina Dragaitis argued the monarchy symbolizes the Constitution, the rule of law and the right to dissent. She said, the appellants are taking a « literal approach » to the oath.

The Supreme Court has not given any reasons for refusing to hear the appeal.

On April 1, 2015, the Canadian government will launch a new industry. Citizenship and Immigration Canada will begin manufacturing “illegal immigrants.”

Four years ago, on April 1, 2011, the Conservative cabinet passed a regulation known as the “4-in, 4-out” rule, requiring all temporary foreign workers who have been in the country for four years or longer to leave, and remain outside Canada for at least four years. As of April 1, then, those still here will be classified as illegal.

In theory, a temporary foreign worker can apply to transition to permanent resident status within those four years in Canada, but in practice, those designated as “low wage” will generally not qualify for this. A few provinces including Manitoba and Alberta have used their limited scope of authority to nominate “low-wage” workers for permanent resident status, but the number of cases in which this has occurred are small.

So by April 1, 2015, all temporary foreign workers who arrived on or before April 1, 2011 are expected to leave the country. Some, however, are expected to remain living and working in Canada without legal status. We know this because that is what has happened from the mid-1940s to the present, in every country in the world that has run a mass guest-worker regime.

This is what any competent Citizenship and Immigration bureaucrat knew and probably told the Minister of Citizenship and Immigration in 2006, when the government decided to dramatically expand and under-regulate the temporary foreign worker program, and again in 2011 when the government instituted the “4-in, 4-out” rule.

Temporary foreign workers overstay their visas and go underground for various reasons. Their families abroad may depend on their remittances to subsist. They may have been exploited by rapacious “recruiters” and/or unscrupulous employers. Returning home empty-handed and possibly indebted is not only stigmatizing, it can be dangerous.

Some workers may even have felt at home in Canada, gradually becoming potential members of the society where they live, work and pay taxes. Some Canadians may consider the government’s guest-worker regime to be misguided and believe it should not continue. But terminating it will not resolve the dilemma of those temporary foreign workers who are already here and who are the targets of the “4-in, 4-out” rule.

It is common knowledge that some sectors of the U.S. economy have become dependent on undocumented workers, of which there are an estimated 11 million. Some employers find them a desirable work force precisely because their deportability ensures that they will “work hard and work scared.” These employers are also known to wield their political influence accordingly.

Migrants without legal status are also easy targets for vilification. The slide from “illegal immigrant” to “criminal” in popular discourse is easy. A government that is looking to supplement the bogus refugee, the marriage fraudster and the foreign terrorist with a new category of bad immigrant and a new excuse to get tough on non-citizens might find it convenient to add “illegal immigrants” to the roster. The government’s role in illegalizing these migrants may escape notice.

On March 31, temporary foreign workers will go to bed as lawfully employed, hard-working, tax-paying residents of Canada, and wake up the next day as illegal immigrants.

Source: National Post

Attorney Colin Singer Commentary:

Illegal immigrants who are currently employed in Canada could be given temporary work permits by the Canadian government. Those who remain in good standing could apply for permanent residence after a period of 12 to 24 months.

Almost a quarter of Canada’s illegal immigrants could make use of such a scheme and bring in significant tax revenue. This could represent some $150 million in direct annual taxes and ER contributions in the first year alone. Plus, these individuals would eventually be able to sponsor their immediate family members and this would further increase income taxes, ER payroll taxes and HST consumption tax expenditures far beyond the income tax revenues.

A drastic decrease in the proportion of immigrants seeking Canadian citizenship, from 79% in 2000 to 26% in 2008, is raising fears that new rules and fees are discouraging immigrants from becoming Canadian citizens.

Analysis of citizenship data has led to former Citizenship Director-General, Andrew Griffith, to warn about the implications of immigrants becoming disenchanted with citizenship rules applicable in Canada. The former Director-General has opined that the drastic fall in citizenship data is a result of the reforms introduced by the Conservative government, including the introduction of a new version of the citizenship test.

The expert is of the opinion that recent changes have made it tougher for immigrants to acquire citizenship, leading to a piquant situation where a large number of immigrants are unable to enjoy the political benefits of Canadian citizenship.

Analyzing data released by the government, Griffith has expressed concern over the significant decline in the ratio of permanent residents seeking Canadian citizenship. As compared to 79% amongst immigrants who arrived in 2000 and 44% amongst immigrants settling in Canada in 2007, only 26% of those who obtained Permanent Residence in 2008 chose to become citizens of the country.

Considering that the process of acquisition of citizenship takes around six years, the 2008 data is, according to Griffith, a clear indicator of the negative impact of the recent reforms introduced in Canada. While acknowledging the link between conversion rate and the duration of stay as permanent resident, Griffith pointed out that an 18% reduction in demand for Canadian citizenship between 2008 and 2007 was an alarming development.

Responding to the criticism, spokesperson of Citizenship and Immigration Canada said non-fulfillment of all the requirements to initiate the citizenship process may be the primary cause behind the variation in data. The spokesperson pointed out that Canada has always enjoyed a high rate of naturalization, at around 86%, as compared to other countries.

The biggest distinction between permanent residents and Canadian citizens is that the former cannot vote or hold a Canadian passport. Further, permanent residents face the risk of revocation of permit, which may result in their removal from the country. Further, citizens are protected by the Charter of Rights and Freedoms.

Griffith has been vocal in his criticism despite being associated with the government during the development and implementation of the reforms. Acknowledging the rationale behind the changes, Griffith emphasized on the importance of an inclusive instead of exclusion-oriented approach. While stating that citizenship should be restricted only to those who were serious about it, Griffith warned against creation of inadvertent barriers that may affect the relationship of some communities with Canadian society.

Over the past four years, Canada has introduced numerous reforms, including administering of a new citizenship test and an increase in passing scores from 60% to 75%. Applicants are now required to correctly answer 15 out of the 20 multiple choice questions in order to qualify for citizenship. The test is designed to assess immigrants’ knowledge about the history, culture, and values of Canadian society.

Commenting on the impact of the new test on immigrants of different communities, Griffith pointed out that immigrants from the Caribbean region have witnessed a 20% decline in their passing percentage. Immigrants from other communities from South Asia, South Africa, and East Africa witnessed a decline of more than 15%.

Responding to this criticism, the CIC spokesperson pointed out that applicants from all communities undergo the same test. Further, the spokesperson pointed out that an overall pass percentage of 85% is a clear indication that the test is neither too easy not to difficult for immigrants applying for citizenship.

Another obstacle, according to Griffith, is the significant hike in citizenship application fees. In the past, the decision to opt for citizenship was based on the education and income levels of the immigrants. Griffith pointed out that high fees have created an additional hurdle for immigrants on an unsound financial footing.

In 2013, the fee for processing citizenship applications was increased from $100 to 530 over two separate hikes in February and December. Further, immigrants who qualify are required to pay an additional $100 towards the Right of Citizenship fee.

Warning the government of further issues in engaging with immigrants and creating an attachment to the identity of Canada, Griffith pointed out that demand for citizenship has come down despite the fact that the most controversial changes to citizenship rules are yet to come into force.

New residence rules require applicants to be present in Canada for four out of six years as opposed to the earlier requirement of three out of four years. Further, age limit for exemption from language and citizenship tests has been raised from 55 years to 65 years. Both these changes will come into force from June 2015.

The former head sought a fair balance between maintaining a vigorous process for identifying future citizens without making the entire process seem like an unfair and unreasonable farce.

After spending much of last week hearing expert witnesses expound on the pros and cons of the government’s proposed new anti-terror laws, the House public safety committee began clause-by-clause review of the bill on Thursday.

The government has already signalled that it intends to have Conservative MPs propose three changes, the most significant of which is removing the word ‘lawful’ from the section exempting protests from the new measures. The New Democrats and Green Party have prepared their own motions, and Green Party Elizabeth May plans to bring forward 60 potential tweaks.

Elsewhere on the committee front:

Citizenship and Immigration Minister Chris Alexander takes questions on his bid to crack down on early and forced marriage, as well as polygamy amongst citizenship applicants, permanent residents and refugee claimants.

Veterans members get briefed on « upcoming commemoration initiatives. »

The Procedure and House Affairs committee goes behind closed doors to discuss their ongoing review of the MPs’ conflict of interest code.

According to applicants, changes to a federal program to help Canadians hire foreign workers as nannies means families are now dealing with unexplained delays and confusion.

Last year, Citizenship and Immigration Canada implemented changes designed to encourage more Canadian applicants for the job, while onetime Immigration Minister Jason Kenney argued the old program had « mutated » into a family-reunification scheme.

To hire a worker under the program, a family must first show there is a need to hire a foreign worker to fill the job, and that no Canadian applicants were available, by applying for a Labour Market Impact Assessment (LMIA). If the family receives a positive LMIA, it can start applying for a work permit and eventually hire a foreign national for the job.

One family currently pursuing a hiring under the program said before the family applied for a LMIA, it spent four weeks searching for a Canadian nanny. After receiving zero response to their ads the couple then applied for the LMIA. That’s where the process stalled.

Family members didn’t hear back for weeks and phone calls didn’t yield any information. In February, they discovered their application, and those of 23 other families, were missing. The couple had to go through the process again and resubmit the application.

Aside from delays, the changes have brought other frustrations. When asked about the delays, Employment and Social Development Canada responded in an email that in February, 80 per cent of the LMIA applications for foreign workers were processed within 30 days. However, the agency does not separately track LMIA processing times specifically for the caregiver program.

It appears the caregiver program was a victim of politics and the changes were made as part of a « knee-jerk reaction » to wider problems with the Temporary Foreign Worker Program. There are unconfirmed reports that the government through its inside Canada offices is delaying the processing of care-giver applications.